WEBVTT 1 00:00:02.439 --> 00:00:05.839 Welcome to scot Discust, a project of the Federalist Society 2 00:00:05.960 --> 00:00:09.519 for Law and Public Policy Studies. Our contributors join us 3 00:00:09.560 --> 00:00:12.759 from around the country to bring you expert commentary on 4 00:00:12.960 --> 00:00:15.599 US Supreme Court cases as they are argued and the 5 00:00:15.679 --> 00:00:19.120 decisions are issued. The Federalist Society takes no position on 6 00:00:19.160 --> 00:00:22.960 particular legal or public policy issues. All expressions are those 7 00:00:23.000 --> 00:00:23.600 of the speaker. 8 00:00:27.920 --> 00:00:31.760 Hello, and welcome Disco Discust. I'm your host, Kyle hammerniz 9 00:00:31.839 --> 00:00:34.960 On behalf of the Faculty division of the Federalist Society. 10 00:00:35.600 --> 00:00:38.640 Today we have a moderated discussion on Food and Drug 11 00:00:38.679 --> 00:00:42.759 Administration versus Alliance for Hippocratic Medicine in which the Supreme 12 00:00:42.799 --> 00:00:46.280 Court issued a nine zero decision on June thirteenth, twenty 13 00:00:46.320 --> 00:00:49.920 twenty four. It is my honor to introduce our moderator 14 00:00:49.960 --> 00:00:54.119 and our guests today. Our moderator is Professor Teresa Stanton Collette. 15 00:00:54.920 --> 00:00:57.359 Teresa is a professor and the director of the Pro 16 00:00:57.399 --> 00:01:00.359 Life Center at the University of Saint Thomas School Law. 17 00:01:01.200 --> 00:01:04.239 Our first guest is Adam you Nikowski. Adam is a 18 00:01:04.280 --> 00:01:08.799 partner at General Bloc LLP. Our second guest is Megan Wold. 19 00:01:09.280 --> 00:01:12.280 Megan is a partner at Cooper and Kirk, And with that, 20 00:01:12.359 --> 00:01:14.840 I like to turn things over to our moderator to give. 21 00:01:14.719 --> 00:01:15.840 Us the background of the case. 22 00:01:21.280 --> 00:01:22.280 Thank you very much. 23 00:01:23.000 --> 00:01:24.920 I'm delighted to be a part of this program and 24 00:01:25.319 --> 00:01:28.719 excited to hear what our panelists have to say. We're 25 00:01:28.719 --> 00:01:32.239 discussing a case that I believe has been widely in 26 00:01:32.280 --> 00:01:35.040 some ways misreported in the press, in part because it 27 00:01:35.120 --> 00:01:38.200 turns on what some have been calling a legal technicality, 28 00:01:38.640 --> 00:01:41.719 and so rather than take up time with my comments 29 00:01:41.760 --> 00:01:44.400 on it, I will turn to our panelists, who have 30 00:01:44.519 --> 00:01:47.359 some opening statements to sort of explain how they read. 31 00:01:47.159 --> 00:01:53.640 The case itself. Adam, thank you for that introduction. So 32 00:01:54.120 --> 00:01:55.719 I'll probably just talk for a couple of minutes. 33 00:01:55.840 --> 00:01:59.079 I'll begin by summarizing what the case was, what the 34 00:01:59.079 --> 00:02:02.480 Supreme Court, and what the implications of the ruling all are, 35 00:02:02.560 --> 00:02:05.599 and then i'll very briefly editorialize a little bit about 36 00:02:05.599 --> 00:02:07.280 what I think about the ruling, which. 37 00:02:07.120 --> 00:02:09.639 Is maybe the marterest thing part. So most of you 38 00:02:09.719 --> 00:02:11.319 know what the case is about, but for those. 39 00:02:11.120 --> 00:02:16.840 Who don't, the plaintiffs are organizations of pro life doctors 40 00:02:16.840 --> 00:02:19.439 as well as a few individual pro life doctors. They 41 00:02:19.479 --> 00:02:22.840 filed the lawsuits in the Northern District of Texas, alleging 42 00:02:22.879 --> 00:02:26.879 that the FDA had acted illegally in improving MiFi prostin, 43 00:02:26.919 --> 00:02:30.759 which is a drug that causes abortions, in two thousand 44 00:02:31.319 --> 00:02:35.280 and alternatively arguing that the FDA acted illegally in loosening 45 00:02:35.319 --> 00:02:38.719 certain conditions of use through a series of orders in 46 00:02:38.800 --> 00:02:44.759 twenty sixteen, nineteen, and twenty one. And the plaintiffs, of course, 47 00:02:44.800 --> 00:02:48.240 to establish their entitlement to any relief at all, must 48 00:02:48.280 --> 00:02:49.520 have Article three standing. 49 00:02:49.879 --> 00:02:50.240 And so the. 50 00:02:50.240 --> 00:02:54.199 Plaintiffs are doctors that they do not prescribe mifipristone themselves. 51 00:02:53.800 --> 00:02:55.919 Do not require too, and they never alleged that they 52 00:02:55.919 --> 00:02:58.400 did in fact prescribe it. Their theory of standing was 53 00:02:58.400 --> 00:02:59.159 a little bit different. 54 00:02:59.240 --> 00:03:02.400 Essentially, of standing turned on injuries that would result if 55 00:03:02.400 --> 00:03:04.319 other doctors prescribing with for pristone. 56 00:03:04.560 --> 00:03:06.400 The theory was that if other. 57 00:03:06.280 --> 00:03:10.199 Doctors would do that, then patients would have complications and 58 00:03:10.240 --> 00:03:13.759 then come to emergency rooms and encounter the plaintiff doctors, 59 00:03:14.360 --> 00:03:17.800 whereupon the plant doctors either would experience a conscience violation 60 00:03:18.319 --> 00:03:21.240 or would simply be expanding resources on caring for the patients. 61 00:03:21.280 --> 00:03:24.080 So they'd rather expend in a different way, and the 62 00:03:24.080 --> 00:03:26.879 plane off organizations also alleged that they had to spend 63 00:03:27.319 --> 00:03:30.159 time and money essentially educating people as to the harms 64 00:03:30.680 --> 00:03:32.759 of MiFi pristone, which they wouldn't have had to do 65 00:03:33.479 --> 00:03:36.639 if MEPhI pristone hadn't been approved. So Federal District Court 66 00:03:36.759 --> 00:03:41.080 in Texas agreed with the planiff's arguments on both standing 67 00:03:41.120 --> 00:03:43.879 and the merits and held that the FDA had acted 68 00:03:43.919 --> 00:03:46.319 i legally in approvingly Ford pristone back in two thousand 69 00:03:46.840 --> 00:03:51.039 and essentially granted a complete victory to the plaintiffs. After 70 00:03:51.120 --> 00:03:54.120 some flori of filings both in the Fifth Circuit and 71 00:03:54.159 --> 00:03:56.840 in the Supreme Court, that order was stayed in its entirety, 72 00:03:56.879 --> 00:03:58.800 so it never actually went into effect as a result 73 00:03:58.840 --> 00:04:03.080 of the Supreme It's order. Ultimately, the Fifth Circuit partially 74 00:04:03.120 --> 00:04:04.840 affirmed the District Court as. 75 00:04:04.719 --> 00:04:06.319 Relevant to the Supreme Court's ruling. 76 00:04:06.360 --> 00:04:08.840 The court held that the planeffs did have standing, which 77 00:04:08.879 --> 00:04:10.680 is what opened up the door for them to obtain 78 00:04:10.680 --> 00:04:13.919 relief on other issues, and the Fifth Circuit ultimately concluded 79 00:04:13.960 --> 00:04:18.360 that the District Court was correct to hold that the 80 00:04:18.439 --> 00:04:22.079 FDA acty legally with respect to certain decisions in twenty 81 00:04:22.120 --> 00:04:25.160 sixteen and twenty twenty one loosening conditions of use, but 82 00:04:25.319 --> 00:04:28.720 the Fifth Circuit disagreed with the District Court's assessments with 83 00:04:28.759 --> 00:04:31.360 regard to the initial approval in two thousand. 84 00:04:32.040 --> 00:04:35.439 So in the Supreme Court, the parties litigated. 85 00:04:35.040 --> 00:04:38.000 Both the standing issue which the plaintiffs had prevailed on 86 00:04:38.040 --> 00:04:40.439 in the Fifth Circuit, as well as the merits issue 87 00:04:40.639 --> 00:04:42.680 that the Planets had prevailed on. The Supreme Court declined 88 00:04:42.720 --> 00:04:46.319 to hear the plaintiff's cross challenge to the issues on 89 00:04:46.319 --> 00:04:48.000 which the plane was lost on in the Fifth Circuit, 90 00:04:48.319 --> 00:04:50.560 and the Supreme Court ultimately ruled that the Planets did 91 00:04:50.639 --> 00:04:53.920 not have Article three standing in a unanimous decision by 92 00:04:54.360 --> 00:04:55.199 Justice Kavanaugh. 93 00:04:55.759 --> 00:04:58.560 So the Court walked through the three theories of. 94 00:04:58.519 --> 00:05:00.959 Standing that the Planets had proffered and concluded that each 95 00:05:01.000 --> 00:05:04.800 of them was inadequate. So, first of all, the plaintiffs 96 00:05:04.800 --> 00:05:07.680 alleged a conscience violation that they might experience either if 97 00:05:07.680 --> 00:05:10.480 they had to perform an abortion or perhaps provide medical 98 00:05:10.519 --> 00:05:13.639 care to someone who had complications from a method pristine abortion, 99 00:05:14.079 --> 00:05:16.360 and the Supreme Court rejected this argument both as a 100 00:05:16.399 --> 00:05:17.480 matter of law and fact. 101 00:05:17.759 --> 00:05:18.560 As a matter of law. 102 00:05:18.639 --> 00:05:20.959 The court held that there was conscience protections which would 103 00:05:21.120 --> 00:05:24.399 ensure that the doctors didn't personally wouldn't personally have to 104 00:05:24.399 --> 00:05:24.839 face the. 105 00:05:24.839 --> 00:05:26.079 Situation in the future. 106 00:05:26.439 --> 00:05:28.759 As a matter of fact, the court walked through the 107 00:05:28.759 --> 00:05:32.000 doctor's declarations and concluded that they didn't have any examples 108 00:05:32.240 --> 00:05:35.680 of situations in the past when they faced these experiences, 109 00:05:35.720 --> 00:05:38.839 and so they hadn't shown a subficient likelihood that they'd 110 00:05:38.879 --> 00:05:42.319 have to face these situations in the future. The planets 111 00:05:42.360 --> 00:05:44.600 also argued that there was a conscience violation that they'd 112 00:05:44.639 --> 00:05:49.680 experienced if they essentially were aware of other doctors performing abortions, 113 00:05:49.720 --> 00:05:53.959 prescribing with a pristone concluding treating complications. The court held 114 00:05:53.959 --> 00:05:56.399 that that type of conscience injury didn't give rise to standing. 115 00:05:56.399 --> 00:05:58.319 In other words, it's one thing to say it's an 116 00:05:58.319 --> 00:06:00.560 injury to my conscience if I have to provide medical care, 117 00:06:00.759 --> 00:06:02.839 but it's another to say my conscience is injured if 118 00:06:02.879 --> 00:06:04.839 I just witness other people doing things that I don't 119 00:06:04.879 --> 00:06:05.360 agree with. 120 00:06:05.639 --> 00:06:07.759 That's not enough for standing, the court held. 121 00:06:08.399 --> 00:06:11.079 The second theory of standing was simply that there was 122 00:06:11.120 --> 00:06:13.879 a risk that the plaintiffs would just have to take 123 00:06:13.920 --> 00:06:15.920 care of these patients in the future, and if they 124 00:06:15.959 --> 00:06:17.920 did that, they would spend time on that, they'd rather 125 00:06:17.959 --> 00:06:19.839 spend time on other things, and that was an injury. 126 00:06:20.240 --> 00:06:22.000 And the court held, both as a matter of fact 127 00:06:22.079 --> 00:06:25.560 and law that this this was this didn't establish standing. 128 00:06:25.600 --> 00:06:27.240 As a matter of fact, it was too speculative. There 129 00:06:27.279 --> 00:06:29.120 was no real evidence that this was going to happen. 130 00:06:29.399 --> 00:06:30.959 And as a matter of law, I would really open 131 00:06:31.040 --> 00:06:33.399 the courthouse store for doctors to be able to challenge 132 00:06:33.480 --> 00:06:37.079 essentially any rule eliminating a safety restriction, So the rule 133 00:06:37.120 --> 00:06:40.360 and gun safety were relaxed, or a speed limit were increased, 134 00:06:40.560 --> 00:06:42.680 doctors could sue and say, well, you know, there's many 135 00:06:42.720 --> 00:06:45.000 more people in the emergency room. We'll have to see them, 136 00:06:45.279 --> 00:06:47.160 so we're going to spend time on that. And the 137 00:06:47.160 --> 00:06:50.079 court basically wasn't willing to open up the courthouse. 138 00:06:49.720 --> 00:06:50.800 Stores in quite that way. 139 00:06:51.439 --> 00:06:54.639 And the final theory of standing that the plaintiffs proffered 140 00:06:54.680 --> 00:06:58.560 was organizational standing, essentially saying that the organization themselves would 141 00:06:58.560 --> 00:07:01.600 be injured basically because they'd have to spend time educating 142 00:07:01.639 --> 00:07:05.519 people or you know, combating the rule or advocating against it, 143 00:07:05.800 --> 00:07:07.560 and that would expend resources. 144 00:07:07.600 --> 00:07:09.480 And you know, if the WORL didn't exist, they wouldn't 145 00:07:09.480 --> 00:07:09.959 have to do that. 146 00:07:10.279 --> 00:07:12.639 As the court pointed out, that would basically obliterate all 147 00:07:12.639 --> 00:07:15.800 limits on standing, because anytime any agency passes a rule 148 00:07:15.800 --> 00:07:18.680 on anything, an organization can say, well, we're spending money 149 00:07:18.800 --> 00:07:21.079 advocating against it, and so that's an injury. 150 00:07:21.120 --> 00:07:22.720 We'd rather spend the money in other things. 151 00:07:23.199 --> 00:07:25.800 And you know, that limitless principle would essentially allow, as 152 00:07:25.839 --> 00:07:28.439 I said, any organization to sue any agency over anything, 153 00:07:28.680 --> 00:07:31.839 and the court decided that that expanded standing too far. 154 00:07:32.399 --> 00:07:34.759 So I'll just say one word about you know, about 155 00:07:34.800 --> 00:07:37.160 my views on the decision. I agree that I view 156 00:07:37.160 --> 00:07:38.959 it as a victory for the separation of powers and 157 00:07:39.040 --> 00:07:43.240 judicial restraint. The plaintiff's theories of standing would really broaden 158 00:07:43.279 --> 00:07:45.879 the category of agency actions that would be challenged by 159 00:07:45.920 --> 00:07:49.199 private plaintiffs. I think that the premise of Article three 160 00:07:49.720 --> 00:07:51.600 is that the role of the courts is to address 161 00:07:51.680 --> 00:07:55.160 legitimate grievances by people who have rules that personally affect them. 162 00:07:55.800 --> 00:07:58.079 But when plaintiffs basically. 163 00:07:57.680 --> 00:08:01.360 Disagree as citizens as opposed to his individual litigants, the 164 00:08:01.360 --> 00:08:04.959 correct remedies the political process and not litigation, and that 165 00:08:05.000 --> 00:08:06.879 I think is the principle that was indicated by the 166 00:08:06.920 --> 00:08:07.680 court in this case. 167 00:08:07.959 --> 00:08:09.360 So I'll turn over to my call now. 168 00:08:11.879 --> 00:08:16.759 Megan, please respond or give us your views of the case. 169 00:08:17.600 --> 00:08:17.959 Thank you. 170 00:08:18.079 --> 00:08:22.800 I appreciate that, and I appreciate Adam's discussion of what 171 00:08:22.839 --> 00:08:25.639 the opinion said. I don't really intend to add to that. 172 00:08:25.680 --> 00:08:29.720 He's ably covered everything that it was addressing. In this case, 173 00:08:29.839 --> 00:08:32.519 I filed an amicus brief on behalf of the Catholic 174 00:08:32.600 --> 00:08:37.200 Association along with a doctor, doctor Gracie Poso Christie, who 175 00:08:37.759 --> 00:08:43.200 is a practicing position in diagnostic radiology, so she reads ultrasounds, 176 00:08:43.200 --> 00:08:45.360 which would be the most direct relevance to this case. 177 00:08:45.879 --> 00:08:48.159 And I wanted to say a little bit more about 178 00:08:48.279 --> 00:08:50.679 the purpose of that amicust brief and the information that 179 00:08:50.759 --> 00:08:54.279 it was conveying, in part because I think it's going 180 00:08:54.360 --> 00:08:59.279 to continue to be relevant in potentially the further litigation 181 00:08:59.320 --> 00:09:03.360 of this case, but also another case that exists in 182 00:09:03.399 --> 00:09:06.480 the lower courts in the Ninth Circuit, in which states 183 00:09:06.480 --> 00:09:10.279 are challenging these same mithipristone regulations, and that obviously changes 184 00:09:10.320 --> 00:09:12.919 the standing calculation, something we can talk a little bit 185 00:09:12.960 --> 00:09:16.279 more about, but for purposes of our amicist brief, the 186 00:09:16.320 --> 00:09:19.960 goal of the brief was to convey two different things, 187 00:09:20.200 --> 00:09:23.519 some additional factual background that was echoing and supportive of 188 00:09:23.559 --> 00:09:25.399 what the plaintiffs in this case we're arguing. 189 00:09:26.080 --> 00:09:26.919 And the first was. 190 00:09:26.879 --> 00:09:31.360 The medical background about how the deregulation of methi pristone 191 00:09:31.399 --> 00:09:34.399 could lead to and not could but does lead to 192 00:09:34.559 --> 00:09:37.639 more emergency room visits from women who have taken the 193 00:09:37.720 --> 00:09:42.519 drug and are experiencing incomplete abortions. So, miphi PRIs stone 194 00:09:42.799 --> 00:09:46.039 is a drug that a woman takes, usually in my 195 00:09:46.120 --> 00:09:48.480 two drug cocktails, a little bit more complicated than that, 196 00:09:48.519 --> 00:09:51.159 but for simplicity's sake, a woman takes the drug and 197 00:09:51.200 --> 00:09:56.080 it causes the body to expel a pregnancy, and that 198 00:09:56.159 --> 00:10:01.159 process becomes increasingly risky as a pregnancy progresses. So if 199 00:10:01.159 --> 00:10:04.639 a person is supposed to be taken before seventy days 200 00:10:04.679 --> 00:10:07.600 of gestation, so when a woman's been pregnant for roughly 201 00:10:08.159 --> 00:10:12.200 two months, and the best way to date a pregnancy, 202 00:10:12.200 --> 00:10:15.639 in fact, the only effective and accurate way to know 203 00:10:15.720 --> 00:10:17.759 that the date of a pregnancy, to know how far 204 00:10:17.799 --> 00:10:21.759 along a woman is is through an in person ultrasound, 205 00:10:22.440 --> 00:10:25.679 But the FDA's deregulation of mefipristone did away with the 206 00:10:25.720 --> 00:10:29.799 requirement of an in person visit before MiFi pristone could 207 00:10:29.799 --> 00:10:33.159 be administered, and so the result of that is a 208 00:10:33.480 --> 00:10:38.080 greatly increased risk that women are self assessing their pregnancies 209 00:10:38.120 --> 00:10:41.440 incorrectly or with the help of a doctor, their pregnancies 210 00:10:41.480 --> 00:10:45.480 are being assessed incorrectly and improperly dated, quausing them to 211 00:10:45.559 --> 00:10:49.480 take mifipristone much later than seventy days gestation, at which 212 00:10:49.480 --> 00:10:54.440 point the risks increase quite significantly, the risk being that 213 00:10:55.039 --> 00:10:58.240 the abortion might be initiated, but it wouldn't be completed 214 00:10:58.480 --> 00:11:01.559 and that would necessarily require treatment in an emergency room, 215 00:11:01.559 --> 00:11:05.480 and in fact, FDA's packaged insert on mithi pristone says 216 00:11:05.559 --> 00:11:09.000 that emergency room care is the backstop or when these 217 00:11:09.039 --> 00:11:11.720 drugs fail to complete the abortion, which is expected in 218 00:11:11.759 --> 00:11:17.759 a certain percentage of cases. It's also important that women 219 00:11:17.840 --> 00:11:21.960 do experience ec topic pregnancies, which are non viable pregnancies 220 00:11:22.000 --> 00:11:25.759 located in the fallopianco rather than the uterus, and those 221 00:11:25.799 --> 00:11:28.080 can only be diagnosed through an in person ultrasound. 222 00:11:28.120 --> 00:11:30.559 As well, there are no questions you can ask the woman. 223 00:11:30.639 --> 00:11:34.240 There are no home pregnancy tests that can tell you 224 00:11:34.279 --> 00:11:37.720 whether pregnancy is a topic and taking mephipristone in the 225 00:11:37.759 --> 00:11:40.159 case of an ectopic pregnancy can be very risky as 226 00:11:40.200 --> 00:11:43.639 well and result in the necessity of emergency room care 227 00:11:43.679 --> 00:11:48.039 and other complications. So for this reason, our brief was 228 00:11:48.080 --> 00:11:52.480 trying to elucidate further some of the factual circumstances at 229 00:11:52.480 --> 00:11:57.000 issue here that the FDA's deregulation of mifipristone, by doing 230 00:11:57.039 --> 00:12:01.279 away with the requirement of an in person diagnostic visit, 231 00:12:01.360 --> 00:12:04.320 would increase the number of emergency room visits and complications 232 00:12:04.360 --> 00:12:06.919 that I'm in face. Then the second portion of the 233 00:12:06.919 --> 00:12:10.639 brief is really focused on Catholic hospitals. First of all, 234 00:12:10.679 --> 00:12:14.960 the very high percentage of hospitals in the United States 235 00:12:14.960 --> 00:12:17.759 that are Catholic hospitals and some of the historical background 236 00:12:17.759 --> 00:12:21.519 for why that is, and these hospitals do have conscience 237 00:12:21.799 --> 00:12:25.759 concerns when it comes to treating women in these emergency circumstances. 238 00:12:25.919 --> 00:12:29.679 To be clear, Catholic hospitals will always treat women who 239 00:12:29.720 --> 00:12:33.159 present in an emergency, regardless of whether they've taken methopristone, 240 00:12:33.200 --> 00:12:35.879 regardless of how they come to be in that emergency 241 00:12:36.000 --> 00:12:40.600 medical situation. The concern though of Catholic hospitals is that 242 00:12:41.000 --> 00:12:42.799 there can be very fraught moral. 243 00:12:42.480 --> 00:12:44.320 Circumstances at issue. 244 00:12:44.360 --> 00:12:47.200 For example, a woman may come in wanting to complete 245 00:12:47.200 --> 00:12:52.039 the abortion, but with a living unborn child, and this 246 00:12:52.240 --> 00:12:56.320 would create a serious moral complication for Catholic hospitals. And 247 00:12:56.360 --> 00:12:58.679 also in the heat of an emergency, some of these 248 00:12:58.679 --> 00:13:02.759 details may may not be clear. So this was the 249 00:13:02.799 --> 00:13:05.000 second portion of the brief, was elucidating some of the 250 00:13:05.159 --> 00:13:08.840 conscience problems that would arise for Catholic hospitals. Now, there 251 00:13:08.840 --> 00:13:11.639 were no Catholic hospitals as named plaintiffs in the case, 252 00:13:11.679 --> 00:13:13.960 and as with all amicust briefs, were not able to 253 00:13:14.000 --> 00:13:18.919 actually supplement the factual record. This was just some additional information. 254 00:13:20.639 --> 00:13:22.559 I don't read the court's opinion, and I think they're 255 00:13:22.559 --> 00:13:24.919 pretty explicit and not addressing. 256 00:13:24.440 --> 00:13:26.320 These kinds of the kind. 257 00:13:26.159 --> 00:13:29.240 Of medical evidence or weighing that evidence in the case, 258 00:13:29.240 --> 00:13:32.159 which makes perfect sense. You don't have a plaintiff with standing, 259 00:13:32.200 --> 00:13:33.960 so of course you wouldn't engage in the merits of 260 00:13:34.000 --> 00:13:34.960 the dispute. 261 00:13:36.120 --> 00:13:36.679 But what the. 262 00:13:36.639 --> 00:13:40.000 Court's opinion focused on was the connection between these plaintiffs 263 00:13:40.320 --> 00:13:42.799 and these alleged injuries, and I think it did a 264 00:13:42.840 --> 00:13:48.279 number of important things. I think affirming that the federal 265 00:13:48.360 --> 00:13:52.320 law provides conscience protections and that doctors can invoke them 266 00:13:52.320 --> 00:13:57.440 simply by refusing to perform medical care that violates their 267 00:13:57.440 --> 00:14:02.440 conscience is a helpful elaboration by the court. It wasn't 268 00:14:02.879 --> 00:14:06.679 entirely clear how those conscience protections would apply, or how 269 00:14:06.919 --> 00:14:09.759 atala another statute at issue in another case before the 270 00:14:09.799 --> 00:14:14.519 court right now would affect conscience protections, and so the 271 00:14:14.519 --> 00:14:17.039 Court did elaborate on those things, and I think very 272 00:14:17.080 --> 00:14:21.600 helpfully for people who have conscious objections to performing abortions. 273 00:14:23.320 --> 00:14:24.759 But for that reason, these. 274 00:14:24.600 --> 00:14:27.519 Plaintiffs couldn't assert those conscience objections because they were already 275 00:14:27.559 --> 00:14:29.120 protected by federal law. 276 00:14:30.360 --> 00:14:32.120 And then these I think the. 277 00:14:34.279 --> 00:14:37.519 Focus of the Court's opinion was on the attenuation and 278 00:14:37.559 --> 00:14:41.279 the speculative nature of these injuries, of which I was 279 00:14:41.320 --> 00:14:44.759 just discussing about the increase in emergency room visits, the 280 00:14:44.799 --> 00:14:48.759 attenuation between that connection and these plaintiffs that they were 281 00:14:48.799 --> 00:14:53.120 unable to substantiate that they had been seeing these increased 282 00:14:53.159 --> 00:14:56.720 numbers of it, they had been required to perform these 283 00:14:56.799 --> 00:15:01.159 additional procedures in an emergency. I don't think that the 284 00:15:01.240 --> 00:15:04.879 Court's decision is altogether surprising. I think it is an 285 00:15:04.919 --> 00:15:09.639 application of existing standing doctrines, and the Court was confronted 286 00:15:09.679 --> 00:15:13.919 with some very difficult questions. If these plaintiffs had standing, 287 00:15:14.639 --> 00:15:18.159 it would be like giving a blanket doctor created standing 288 00:15:18.440 --> 00:15:21.720 to challenge any public health regulation, for example. And that's 289 00:15:22.000 --> 00:15:24.840 this type of generalized revents that the Court does not 290 00:15:24.919 --> 00:15:29.480 recognize as conveying standing, and instead that the Constitution provides 291 00:15:29.559 --> 00:15:34.039 political avenues for complaints likelis of the plaintiffs that they 292 00:15:34.080 --> 00:15:38.360 can petition Congress and the President to legislatively change things, 293 00:15:38.360 --> 00:15:42.840 that can petition the FDA through the appropriate channels to 294 00:15:42.879 --> 00:15:45.559 reregulate or otherwise change this regulation that for pristone, or 295 00:15:45.639 --> 00:15:49.080 challenge it in the first instance. And those are the 296 00:15:49.240 --> 00:15:53.320 types of relief that these plaintiffs have not through the 297 00:15:53.360 --> 00:15:54.799 courts and through Article three standing. 298 00:15:55.559 --> 00:15:55.919 Megan. 299 00:15:56.240 --> 00:15:59.639 Is it also true though, that at least in one 300 00:15:59.720 --> 00:16:05.000 of the declarations filed by one of the physicians that 301 00:16:05.080 --> 00:16:10.000 while she herself had not encountered a woman coming into 302 00:16:10.000 --> 00:16:16.799 the emergency room who still had a live pregnancy, one 303 00:16:16.799 --> 00:16:20.840 of her partners had where the child, they detected the heartbeat, 304 00:16:21.360 --> 00:16:24.279 and the doctor felt in order to stop the hemorrhaging 305 00:16:24.320 --> 00:16:29.960 that was caused by the michipristone that the only way 306 00:16:30.000 --> 00:16:34.919 to do that successfully was to terminate the pregnancy. Could 307 00:16:34.960 --> 00:16:38.559 you explain to the listeners why that wasn't adequate given 308 00:16:38.799 --> 00:16:39.879 to the nature review breath? 309 00:16:40.480 --> 00:16:40.919 That's right. 310 00:16:40.960 --> 00:16:44.440 I believe that was doctor Francis who did have her 311 00:16:44.480 --> 00:16:47.919 declaration a description of what had what she had witnessed 312 00:16:48.000 --> 00:16:51.600 or was aware of happening to a partner exactly as 313 00:16:51.639 --> 00:16:55.159 you describe it. And I think had that circumstance happens 314 00:16:55.159 --> 00:16:58.799 to doctor Francis at the court may have reached a 315 00:16:58.799 --> 00:17:02.279 different decision, or doctor Francis her self may have had standing, 316 00:17:02.799 --> 00:17:06.319 But because that hadn't happened to her, it almost in 317 00:17:06.359 --> 00:17:09.720 some ways confirms the fact that in many hospital settings 318 00:17:09.759 --> 00:17:12.039 there are other doctors who can and are willing to 319 00:17:12.079 --> 00:17:15.599 perform these procedures, and so if one doctor has a 320 00:17:15.599 --> 00:17:19.000 conscious objection, there's someone else who can take over. Or 321 00:17:19.039 --> 00:17:22.119 perhaps that these things happened so infrequently that it wasn't 322 00:17:22.279 --> 00:17:24.480 likely that this would happen again. It had never happened 323 00:17:24.519 --> 00:17:26.039 to doctor Francis previously. 324 00:17:27.200 --> 00:17:27.799 That was this. 325 00:17:28.279 --> 00:17:32.400 I think that attenuation analysis is what caused that aspect 326 00:17:32.480 --> 00:17:36.279 of doctor Francis's decoration to not be enough to confer. 327 00:17:36.079 --> 00:17:41.000 Standing and Adam, I had a friend asking me a 328 00:17:41.039 --> 00:17:43.400 question when I was telling them about this program and 329 00:17:43.920 --> 00:17:47.279 encouraging them to watch it, and the question was, how 330 00:17:47.400 --> 00:17:50.440 is it that we have, you know, this plethora of 331 00:17:50.559 --> 00:17:57.200 cases where doctors providing abortion have been granted standing third 332 00:17:57.240 --> 00:18:01.440 party standing based on allegations of their patients, and these 333 00:18:01.480 --> 00:18:05.960 particular doctors don't have third party standing. Why didn't these 334 00:18:06.000 --> 00:18:10.440 doctors fall into a similar exception to the general rule 335 00:18:10.960 --> 00:18:12.400 of third party standing. 336 00:18:13.359 --> 00:18:16.480 Well, I think the difference is that when it's true 337 00:18:16.480 --> 00:18:20.400 that many laws abortion laws essentially say that if a 338 00:18:20.440 --> 00:18:24.240 doctor performs an abortion, the doctor will face certain criminal 339 00:18:24.319 --> 00:18:27.759 or civil consequences, and so in those cases, the doctors 340 00:18:28.000 --> 00:18:30.799 are directly harmed by the state action in the sense 341 00:18:30.839 --> 00:18:34.640 that their actions are regulated. So the classic situation in 342 00:18:34.640 --> 00:18:38.079 which a plaintiff has standing is when there's a regulation 343 00:18:38.119 --> 00:18:39.319 that's targeting them. 344 00:18:39.160 --> 00:18:41.319 Like you do something, you go to jail. 345 00:18:41.559 --> 00:18:43.440 So obviously the going to jail is an injury that 346 00:18:43.480 --> 00:18:45.640 affects the person that's caused by the government if it's 347 00:18:45.640 --> 00:18:48.480 the criminal law that's putting them in jail, and so 348 00:18:48.640 --> 00:18:49.799 they have standing to challenge it. 349 00:18:49.839 --> 00:18:51.480 They say, I don't want to go to jail, and 350 00:18:51.519 --> 00:18:54.279 so I'm harmed by your law that would put me there. 351 00:18:55.079 --> 00:18:58.160 Now, the third party standing in those cases stems from 352 00:18:58.200 --> 00:19:02.599 the fact that the constitutional violation is really experienced by 353 00:19:02.680 --> 00:19:05.559 the women. In other words, the argument is I don't 354 00:19:05.559 --> 00:19:07.839 want to go to jail, and my merits claim is 355 00:19:07.880 --> 00:19:09.880 that the constitutional rights of the women who. 356 00:19:09.799 --> 00:19:11.960 Would be getting the abortion would be violated. 357 00:19:12.039 --> 00:19:15.160 But standing is just premised on the direct entry of 358 00:19:15.160 --> 00:19:18.119 facing a criminal trial. The doctors in this case were 359 00:19:18.119 --> 00:19:21.519 not targeted by the regulation. The FDA wasn't saying, hey, doctors, 360 00:19:21.519 --> 00:19:22.960 you're going to go to jail unless you do something 361 00:19:23.000 --> 00:19:23.599 you don't want to do. 362 00:19:23.960 --> 00:19:25.079 The doctors were really. 363 00:19:24.839 --> 00:19:28.720 Complaining about the collateral effects of other doctors doing things 364 00:19:28.720 --> 00:19:31.759 that were legal under the FDA's rules. And so that's 365 00:19:31.799 --> 00:19:34.039 the difference between those two two fact patterns. 366 00:19:35.160 --> 00:19:39.480 And I think just of course, in writing the I'm sorry, 367 00:19:39.559 --> 00:19:43.039 Justice Kavanaugh and writing the opinion addressed that directly by 368 00:19:43.079 --> 00:19:46.079 saying that they were not compelled to do anything. 369 00:19:46.519 --> 00:19:48.200 Although, as Megan. 370 00:19:47.920 --> 00:19:51.359 Noted, the Idaho case that will be decided, this term 371 00:19:51.440 --> 00:19:56.599 also raises the question about what sorts of treatments might 372 00:19:56.680 --> 00:19:57.559 be required. 373 00:19:58.319 --> 00:20:00.720 Do you have any predictions on that, either. 374 00:20:00.519 --> 00:20:02.759 Of you very good. 375 00:20:05.640 --> 00:20:09.200 It's famously difficult to read the tea leaves and predict 376 00:20:09.240 --> 00:20:11.359 what the court is going to do in any particular case. 377 00:20:12.160 --> 00:20:14.920 I am on the briefs in that case, so I do. 378 00:20:15.400 --> 00:20:18.920 Following it very closely, and it obviously makes sense that 379 00:20:18.920 --> 00:20:20.599 it's going to go down to one of the last 380 00:20:20.759 --> 00:20:22.680 days in the term. It was a very important and 381 00:20:22.720 --> 00:20:26.480 significant case argued in the last week of arguments at 382 00:20:26.519 --> 00:20:30.839 the court. So in that sense, I'm not surprised that 383 00:20:30.880 --> 00:20:34.480 we're still waiting, And you know, I think I think 384 00:20:34.519 --> 00:20:35.559 it's just difficult to say. 385 00:20:35.799 --> 00:20:37.519 It's really difficult to predict. 386 00:20:37.559 --> 00:20:40.599 I'm optimistic that the court will say that I'm till 387 00:20:40.640 --> 00:20:44.359 it doesn't preempt idahose laws. But because this case was 388 00:20:44.400 --> 00:20:48.559 also arising and sort of an emergency posture, there will 389 00:20:48.599 --> 00:20:50.960 be more factual development in the lower courts, and so 390 00:20:51.000 --> 00:20:53.039 I also think there might be some factual issues that 391 00:20:53.119 --> 00:20:55.359 the Court allows the lower courts. 392 00:20:55.079 --> 00:20:55.759 To contend with. 393 00:20:55.920 --> 00:20:59.720 So that's another one of these problems with predicting the 394 00:20:59.759 --> 00:21:01.920 out of decisions. It's not only is it difficult to 395 00:21:01.920 --> 00:21:04.240 predict which way the decision goes, but because of all 396 00:21:04.240 --> 00:21:07.000 the different way that can be written and the complicating factors. 397 00:21:07.319 --> 00:21:11.119 Sometimes there aren't clear wins and losses. So I think 398 00:21:11.160 --> 00:21:14.640 based in oral argument, I am optimistic that Idaho's leave 399 00:21:14.680 --> 00:21:18.240 will not be preempted by MTALA, But I also think 400 00:21:18.279 --> 00:21:20.359 that there might be more life to the case and 401 00:21:20.400 --> 00:21:23.359